Wednesday, August 8, 2012

To Live And Die In Belton USA

Carol Drummond could feel feel the noose tightening around her throat.

For more than five years the 38-year-old
Belton resident had been stalked, threatened and vilified by the
friends of Phillip Hancock, her late husband.

In August, 1991, Drummond called police
after Hancock threatened her with a bayonet. In December, 1991, the
6-foot-2-inch Hancock hurled Drummond to the ground, breaking her
collarbone because her dog had urinated on the floor. A judge ordered
Hancock to stay away from Drummond.

Hancock then lived with a friend, Mark
Lassince, until he made up with Drummond and moved back in with her, in
January, 1992. Also living in the house were Jeffrey Wayne Gardner, an
attractive, soft-spoken, 28-year-old boarder, and Jackie, the 8 year
old daughter of Hancock and Drummond (she kept her own name after the
marriage).

In the early afternoon of March 7, 1992,
Hancock called the Belton police and talked with the dispatcher.
Hancock wanted police to eject Gardner from his house. The dispatcher
explained that, since Drummond was half-owner of the house, if she
wanted Gardner to stay, there was nothing the police could do. Gardner
asked if the police would come over and take Gardner’s gun away from
him. Hancock said he feared Gardner and Drummond would plant the gun on
him, to get his probation revoked. The dispatcher said there was
nothing the police could do about Gardner’s gun, either. Hancock
expressed bitterness, saying he was, “screwed, I don’t have any
rights.”

The dispatcher then gave Hancock fatal
advice: If there were an altercation between Hancock and Gardner, the
dispatcher said, the police would probably make Gardner leave (since he
was not an owner of the house).

Two hours later the police received a
frantic call from Drummond saying Hancock was armed with a knife. When
the police arrived Hancock was dead – shot once in the left shoulder
and twice in the chest. The body lay between the bed and the far wall
of a bedroom. A huge hunting knife was at Hancock’s feet. A German
Luger was in the kitchen.

According to Drummond and Gardner,
Hancock had gone berserk. He’d wielded the knife, threatening to “field
dress” Drummond like a deer. Gardner said he’d come into the house to
gather up some of his clothes, so he could leave, and heard Drummond’s
call for help. Gardner said he went into his bedroom, loaded the Luger
and then went to the couple’s bedroom. He said Hancock advanced with
the knife and he shot him. He fired the Luger five times before it
jammed. Det. Lance Crull found a spent bullet on the bedroom carpet
where Hancock’s body had been laying. A four-foot section of carpet was
ripped up and taken away as evidence. Shell casings were scattered
around the room.

Gardner was arrested, and then released the following day.

A week later Det. Crull returned to the
house and searched Drummond’s garage, looking for a diary allegedly
written by Drummond, and said by Mark Lassince to contain details of a
plot to kill Hancock. No diary. Crull would later testify that all of
Hancock’s clothes were gone from his closet a week after his death, and
Gardner’s bed was made a week after the shooting, whereas it was
unmade a week earlier. This was interpreted as proof that Gardner was
sleeping with Drummond.

A police report of the shooting contends
that Gardner shot Hancock in the shoulder, causing him to drop the
knife, and that Gardner then approached the “now unarmed victim” and
stood over Hancock and shot him “as the victim’s arm was held in front
of him in a defensive gesture.” Gardner denies this version of what
happened.

A BEST FRIEND WITH A MISSION

Phil Gill, Hancock’s best friend, and
other friends of Hancock, gathered a petition, containing 180 names,
asking police to investigate further. Gill contended that Drummond and
Gardner were having an affair – that they’d deliberately provoked
Hancock so Gardner would have an opportunity to kill him.

Gill visited Hancock’s grave often – talking to his friend and holding seances.

Gill and Hancock had been friends for 25
years, since fifth grade. Gill hounded the police and prosecutors, he
led caravans past the house where Drummond and Gardner continued to
live.

On the first anniversary of Hancock’s
death an explosion outside of her house rattled Drummond awake just
after midnight. Her daughter was screaming in fright. The police found
several of Gill’s business cards in the driveway. Gill admitted leading
a caravan of cars past the house, and throwing the business cards in
the driveway, but denied causing the explosion. Belton police chief
James Person opined the explosion was a cherry bomb or other large
firecracker, and said someone appeared to be reminding Drummond of her
husband’s death.

At that time Gill told The Kansas City
Star: “I won’t stop until one of three things happen. Either they are
dead. Or they are in jail. Or I’m dead. That’s when I’ll stop. He was
my best friend for 25 years. This is how it has to be, and that’s how
it has to end.”

The Cass County prosecutor was Dennis
Laster. He finally took the case to the grand jury, which returned a
“no true bill,” meaning the grand jury did not find enough evidence to
charge anyone with a crime.

Normally, that would end the case, unless
new evidence was discovered. Cass County, however, is a bit of a
twilight zone. A plaque outside the courthouse tells of the time toward
the end of the last century when county officials made an ill-advised
investment in railroad bonds. When it was learned the bonds were
worthless, two county officials tried to escape by train. A group of
Cass Countians stopped the train and killed the county officials, along
with a friend of theirs.

That’s ancient history, you say. This is the 1990s.

The grand jury that heard the evidence on
Hancock’s death was the first grand jury in Cass County since 1970. It
had been convened to hear evidence of rampant corruption in the Cass
County Sheriff’s Department, which included allegations of theft, a
woman being raped by a jailer, people being held in the county jail
with no charges being filed against them, and the manufacturing of
evidence in a murder case. A judge later wrote that one of Sheriff
Homer Foote’s employees thought the lawful penalty for someone merely
accused of drunk-driving was “eternity.”

Cass County was facing a raft of lawsuits that, by one estimate, posed $20-million of liability.

Tim Finnicle, an assistant Clay County
prosecutor, was appointed as a special prosecutor to investigate the
situation. Sheriff Foote was eventually ousted from office by a judge.
While Finnicle was investigating Sheriff Foote, Ray White, presiding
Cass County commissioner, tried to extort $5,000 from Finnicle. When
Finnicle kept ignoring Commissioner White’s blatant hints that he
wanted $5,000 in order to vote for the $101,250 Finnicle was to be paid
over a two year period, White, in frustration, contacted Vicki Thomas,
an assistant Cass County Prosecutor, and told her to go tell Finnicle
what he wanted for a yes vote on Finnicle’s compensation. Thomas and
Finnicle went to the FBI together, and White was prosecuted and
convicted in federal court.

After one witness, Aaron Fowler, appeared
before the grand jury to testify against Sheriff Foote and one of his
deputies, Fowler was arrested and tossed into the county jail with no
charges against him. Fowler then sued and the county settled with him.
How much money he received was never revealed. The rape victim was paid
$100,000, the most she could be paid under state law. On the merits of
the woman’s suit, Vicki Thomas, assistant prosecutor, said: “We’re
guilty as can be.”

Three indictments obtained by Special
Prosecutor Finnicle, in 1994, still remain sealed in the courthouse
vault. Finnicle refuses to say who was indicted, what the charges are,
or what he intends to do with the indictments. This is highly unusual.

BELTON IS A LITTLE DIFFERENT

A lot of Kansas Citians think of Belton
as being in Jackson County, but it is in Cass County. In the 1970s it
was known, among other things, as a hangout for bikers, many of whom
sported a Confederate emblem on their motorcycles. In the latter part
of the last century the mayor of Belton was Richard M. Slaughter, a
doctor and former Confederate colonel. He served two terms as mayor and
was on the board of aldermen. In October, 1992, seven months after the
death of Phillip Hancock, a ceremony was held at the Belton Cemetery
and an official Confederate grave marker was placed on Slaughter’s
grave – complete with color guard and multi-gun salute.

In late 1992 a spat broke out between
Gina Selland, the Belton Police Department’s victim advocate, and city
prosecutor Bill Marshall, over Marshall’s lenient treatment of abusive
husbands. Marshall routinely asked that wife-beaters be given a
suspended jail sentence with probation. Selland wanted abusers to have
to undergo six months of counseling. Marshall argued that six months
was too long, and would cost too much. There was a good deal of
wife-beating in Belton in 1992 – as many as 10 incidents in one week,
according to a news report.

Cass County, for many years staunchly
Democratic, began to turn Republican in 1992. That year Ed Hartzler was
elected to the Missouri House of Representatives, and Brian Mills was
elected a county commissioner. Two years later Republicans also
captured the offices of presiding county commissioner and prosecuting
attorney.

The new prosecutor, Chris Koster, a
former Republican assistant attorney general for Missouri, took office
in January, 1995. In March, 1996, although no new evidence had
surfaced, Koster filed charges of manslaughter and armed criminal
action, against Jeffrey Gardner in connection with Hancock’s death.
When Brian Gepford, Gardner’s attorney, pointed out that the statute of
limitations had expired on manslaughter, Koster raised the charge to
second-degree murder, which carried a maximum sentence of life
imprisonment and has no statute of limitations.

THE TRIAL BEGINS

The murder trial began in late June at
the Cass County Courthouse in Harrisonville. Assistant prosecutors Greg
Hill and Bryan Covinsky represented the state. At one point the trial
was moved from the decorum of the regular courtroom to the local
American Legion hall, where the jury, spectators and witnesses sat on
folding metal chairs, and Judge Joseph P. Dandurand presided from
behind an old oak desk with ornate legs.

In this day and age every defense lawyer
is on the lookout for a local Det. Mark Fuhrman – he of the infamous
O.J. glove and I-Never-Said-The-N-Word fame.

Gepford found his Fuhrman in Det. Lance
Crull, a tall, well-built detective who speaks in short, clipped bursts
and accessorizes his suits with cowboy boots. Who testified that the
knife at Hancock’s feet had a pair of men’s underwear wrapped around
the blade, implying that was reason to doubt that the knife had
actually been wielded by Hancock. On cross-examination he admitted that
dying people occasionally thrash around (the defense thus implying
that even if the knife blade was covered, it could have occurred while
Hancock was dying).

Captain D. Chandler, who’d been in charge
of the investigation (and who has since left the Belton Police
Department), testified that he did not recall anything covering the
blade of the knife.

Crull testified there were no
fingerprints on the knife. That testimony was startling, since Hancock
had died bare handed. However, when Capt. Chandler testified, he said
there were fingerprints.

Capt. Chandler said it was his opinion
the shooting was a result of Hancock assaulting Carol Drummond with a
knife. He said that prior to Hancock’s death, Drummond had been to his
office several times to talk about Hancock’s abusiveness. “In my
opinion there was a strong scenario of self-defense,” Chandler
testified.

The prosecutor, stung by Chandler’s
testimony, asked him if he’d ever been to Drummond’s house apart from
the investigation of Hancock’s death, and Chandler said he had been
once – after Hancock’s death. Hill then began to allude to Chandler’s
“relationship” with Drummond.

The crux of the prosecution’s case was
its contention that: the shell casings were in the wrong location in
the bedroom to have been fired from the doorway, as Gardner said they
were; the angle of the bullets in Hancock’s body suggested he’d been
shot after he was on the floor; the bullet laying on the carpet under
Hancock’s body could only have gotten there if he was shot while he was
on the floor, and Gardner had fired the gun too many times for it to
be self-defense.

John Cayton, from the Kansas City Police
Department’s Regional Crime Lab, testified he’d been contacted by the
Cass County authorities only a week prior to trial.

Cayton said he fired several of the
bullets recovered on March 7, 1992, for ballistics comparison. He then
took some 9 millimeter ammunition they had at the crime lab, and fired
the Luger to see where the shells would go. He testified that four of
the five shells fired were ejected to the front and left, and one was
ejected to the front and right. He did not say how far to the front
they were thrown, or how far right or left.

The prosecution argued that the bullet
laying on the carpet was proof Hancock was shot while on the floor.
However, since both of the chest wounds went completely through
Hancock, it is possible that one of those bullets bounced off the wall
behind Hancock and landed on the carpet.

Cayton said he tested the trigger pull of
the Luger, and found it to be 8 1/2 pounds – meaning you would have to
exert that much pressure on the trigger before the gun fired. Cayton
described this as a stiff trigger pull. Unanswered, however, was the
effect on the gun laying in a police evidence room for nearly five and
one-half years before being tested.

The prosecution entered the bedroom
carpet into evidence, and showed the jury a hole – asserting it to be a
bullet hole. However, they did not ask Cayton to test the carpet (for
lead or copper traces) to see if the hole was, in fact, caused by a
bullet.

Dr. Bonita Peterson, who’d been medical
examiner of Jackson County in the 1970s, had been paid to perform an
autopsy on Hancock at the Mount Moriah Funeral Home. She testified that
of the three bullets that hit Hancock, the one in the shoulder hit him
level. The wound on the right side of the chest was at a slight upward
angle, and the wound on the left side of the chest was at a 45-degree
angle. Dr. Peterson said the wound on the right side of the chest had
severed the aorta, causing Hancock to rapidly bleed to death. There was
a wound that penetrated Hancock’s forearm, and Peterson said this was
most likely caused while his arm was raised, and that most likely a
single bullet went through the arm and into the chest.

The prosecution would argue that the
angle of the bullets proved Hancock was shot twice after he was on the
ground and helpless. Gepford argued that the angle of the bullets
proved that the first round hit the shoulder, knocking Hancock
backward. Then the second bullet hit at a slight upward angle, knocking
Hancock even further down, causing the third bullet to hit at a 45
degree angle as he fell to the floor.

Everyone kept waiting for the “real
evidence,” the stuff that would clearly convince a jury that Gardner
had murdered Phillip Hancock, rather than shooting him in self-defense.
Then the prosecution suddenly rested.

CAROL DRUMMOND TAKES THE STAND

The prosecution had listed Carol Drummond
as a witness, but did not call her to testify. The prosecution knew
Drummond would testify, on cross-examination, about the abuse she had
suffered at Hancock’s hands, and that she would say his killing was
self-defense. Gepford would then be able to say in his closing argument
that the prosecution’s own witness said it was self-defense.

Gepford, knowing that a number of
Hancock’s friends, including Drummond’s own sister, Karla Corum, had
told police that Drummond had confessed to them that she was going to
kill her husband, decided to call her to the stand and ask her only
whether she had been subpoenaed as a witness by the prosecutor, and
then let her go. He wanted the jury to know it was the prosecutor’s
decision not to have Drummond testify.

However, on cross-examination, the
prosecutor began to question Drummond about the alleged incriminating
statements she is alleged to have made. Gepford objected, but the judge
ruled Drummond was fair game.

Gepford says the cross-examination of
Drummond, on whether she told people she was going to kill Hancock,
should not have been admissible against Gardner – particularly where
Drummond has never been charged with any crime, and flat out denies
making the statements.

In any event, the prosecutor went after
Drummond like a rat terrier – to such a degree that Koster, who’d come
into the courtroom to observe, began calling his assistant up to the
railing for long conferences. Drummond, an openly emotional woman with
straight brown hair, was a feisty witness and obviously hostile to the
prosecution. She said that the day of the shooting, the police only
questioned her for five minutes, that “they didn’t want the whole
story.” When the prosecutor tried to limit her answer to one question,
she accused him of not wanting to hear the truth. At other times she
cried

She described a long pattern of abuse by
Hancock, saying he would rage at their daughter if he were awakened (he
worked nights at the Fairmont-Zarda Dairy). Drummond testified that it
was originally Hancock’s idea to have Gardner move in, because they
could use the rent money (he was paying $350 monthly). After Gardner
was there, however, she said there came a point when Hancock began to
refer to him as “your boyfriend.” She denied ever having anything but a
platonic relationship with Gardner, saying that he was like a younger
brother to her. She said that Gardner continued to live at her house
for two years following the death of Hancock, because she needed the
rent money, and because she was afraid of Hancock’s friends.

Although it never came out on the witness
stand, Drummond claims Gill sexually assaulted her months prior to the
shooting, but that she’d been afraid to tell Hancock – fearful he
would blame her, rather than Gill. After the shooting she finally
obtained a restraining order against Gill, on a charge of stalking.

Drummond denied telling her sister, or
anyone else, that she intended to kill her husband. She said she and
her sister hate each other and have for years. Gepford called as a
witness a neighbor of Drummond’s who occasionally baby-sat for Jackie.
The neighbor testified she went to Drummond’s house the day of the
shooting, and that Hancock was in a rage. She said Hancock was
threatening to kill the child and threatening to kill the defendant.
She said she took the child to her home, and that Drummond and Gardner
came over also. Drummond reportedly went home to see if she could calm
Hancock down. Gardner followed shortly afterward. The prosecution
challenged the neighbor’s account, saying that the day of the shooting
she’d mentioned nothing to police about Hancock threatening to kill the
child.

Gardner testified, saying he’d originally
met Hancock and Drummond through his sister and her boyfriend. When
they would come to his sister’s house to visit he would often play
games with Jackie (he has children of his own). He’d been living with
his parents, he said, while going through a divorce.

Gardner said he met Hancock and Drummond
in April, 1991 and moved in with them that August. In addition to
paying rent he also baby-sat for them occasionally.

Gardner said he was an Army veteran and
had received the Good Conduct Medal. In addition to being a veteran, he
had a clean criminal record.

Gardner said the day he moved in with
Hancock and Drummond that Hancock became enraged at something and
attacked a dresser with a bayonet. Gardner said he’d gotten along with
Hancock until the December incident when Drummond’s collarbone was
broken. Recalling that incident, he said the argument had begun in the
house and then Hancock followed Drummond into the yard. He said he
watched from the front window as Hancock shoved Drummond to the ground
several times. When he realized that Jackie Hancock, then 8 years old,
was also watching, he led her away from the window.

Gardner said Drummond began calling to
him to come and help her, and he went into the yard. As soon as he
arrived, he said, Hancock charged over to him and told him to get his
ass back inside, or he would get what she was getting. He said he
immediately retreated to the house.

Gardner said he didn’t intend to shoot
the Luger as many times as he did (that he panicked is evidenced by the
fact that, at point-blank range, he missed the 6-foot-2-inch Hancock
two times out of five).

As soon as the defense rested its case, the prosecution called Phil Gill as a rebuttal witness to Drummond.

PHIL GILL FINALLY GETS HIS DAY IN COURT

Phil Gill is a bantam rooster type of
guy. Compact, he has a slight swagger. Where most people, when taking
the oath, say “I do,” or “yes,” when asked if they will tell the truth,
Gill proclaimed, loudly, “ABSOLUTELY!”

Gill said he was called over to Hancock’s
house one evening in January because Hancock was having car trouble.
He said he went into the house to use the bathroom and Drummond stopped
him to ask what Hancock “was saying about J.W. (Gardner) staying
there.”

Gill said Drummond told him, with Gardner
sitting next to her, that, “He’s not going to get away with pushing me
down, and treating me and JW like shit. If we have to, we’ll blow his
fucking head off, then put a knife or gun in his hand to make it look
like self-defense, and then we’ll call 911.”

At that point Brian Gepford fairly leaped
out of his chair objecting. After a lengthy conference among the
lawyers and the judge, a recess was announced. Outside the courthouse
Gepford explained to Gardner that he could have a mistrial if he wanted
one, because the prosecutors had never disclosed that Gill was going
to say Gardner was present when this statement was allegedly made by
Drummond. (If a person is present when an incriminating statement is
made about them, and fails to deny the statement at the time it is
made, there is a presumption that the statement is true).

Gardner was undecided. He was worried
about losing any additional work from his job. As the 96-degree sun
beat down, Gardner asked first one person then another what they
thought.

Gepford, a former prosecutor himself, advised him to take a mistrial.

However, when the jury was called back
into court, it was announced that the trial would be recessed until the
following Tuesday (this was on Thursday). Judge Dandurand explained
that this was the first time in his 11 years on the bench that he’d had
to recess a trial for so long.

The purpose of the long recess was to
allow Gepford time to prepare for his cross-examination of Gill.
Gepford said later that he didn’t think the jury believed Gill, that
his testimony was too patently absurd. He felt Drummond’s testimony,
overall, had helped Gardner, by giving the jury a clear picture of
Hancock’s abuse against not only Drummond, but his own daughter.
Gepford said he felt Hancock’s friends would come across as obvious
perjurers on the witness stand.

In his chambers just after the jury began
its deliberations, Judge Dandurand, however, told Pat O’Connor, editor
of the New Times (a Kansas City alternative newspaper), that he had
felt Gardner would almost certainly be acquitted until Drummond was
called as a witness. The calling of Drummond opened up Pandora’s box
for the defense.

Gepford, one of the most highly regarded
criminal lawyers in Kansas City, had agreed to try the case because
Gardner had originally been represented, in 1992, by Gepford’s father
(former Jackson County Prosecuting Attorney Lawrence Gepford), who had
since died. Gepford’s normal fee in a murder case tried to a jury would
be many thousands of dollars. He was representing Gardner primarily
out of a sense of obligation to his late father. When the trial
reconvened on Tuesday it was at the American Legion hall.

Phil Gill repeated his earlier story,
leaving out the part about Gardner being present when Drummond made her
statement. He added that Drummond had grabbed his hand and told him
not to tell anyone what she had said. He said he told Hancock “they’re
scheming on you,” and that Hancock replied, “I know.”

Gill said Hancock had been his best
friend – “still is” he added. He said he hadn’t held a seance at
Hancock’s grave for more than a year. Gill denied ever threatening
Drummond, but Gepford finally got him to admit “maybe I was” prosecuted
for stalking Drummond.

Andre Lassince, the brother of Mark
Lassince, testified that he was at Hancock’s house one evening, talking
with Drummond while Hancock was asleep, and that Drummond had asked
him about statutes on self-defense. Lassince testified that Drummond
asked him “if I would still be her friend if she had to kill him in
self-defense.” Lassince said he never reported this conversation to
Hancock, although he said he did believe she was serious. He also
testified that Drummond broke her collarbone when “she slipped in the
snow,” saying that both Hancock and Drummond had said that was how it
happened.

Karla Corum, Drummond’s sister, said she
was at Drummond’s house one time and saw Drummond and Gardner rubbing
on each other. She said she commented to Drummond, “Oh, you got some
butt, huh?” and that Drummond had just laughed. She said she was at a
restaurant the night before the shooting and heard Drummond say, “I’m
going to kill Hancock.” She said that she didn’t believe it at the
time, but that the next day Phil Gill came to her home in tears and
said Hancock was dead. She denied being more than an acquaintance of
Gill’s. Asked if she knew who Doris Drummond was, she responded icily,
“that’s my birth mother.” She denied being a drug addict, saying she’d
suffered a stroke in March. Only 43, she is prematurely aged. The
prosecution recalled John Cayton, the regional crime lab expert, back
to the stand, and used him to increase the angle of the chest wound
from the 45 degrees Bonita Peterson found at autopsy, to 75 to 80
degrees, based on his looking at a photograph of the body. He also
described one wound as a “cookie cutter” type wound (no tearing, with
clearly defined edges), indicating the flesh behind the wound was
resting against something (the floor) when the bullet exited the body.
Bonita Peterson, who said she has performed thousands of autopsies in
her career, made no such observations, although she actually worked on
Hancock’s body, rather than simply looking at photographs as Cayton
did.

Mark Lassince, with whom Hancock had
stayed while estranged from Drummond, said Carol Drummond had asked him
to shoot Hancock during deer season, so it would look like an
accident. He also said Hancock had shown him Drummond’s diary, in which
she had laid out her plans to murder Hancock (one wonders why Hancock
forgot to mention this to police when he talked with the police
dispatcher hours before his death).

Jeffrey Drummond, Carol Drummond’s
brother, testified that he was also at the restaurant the evening
before the shooting and that his sister Karla Corum was drunk. He said
Corum was finally asked to leave that night.

Doris Drummond – mother of Carol Drummond
and Karla Corum – testified that Corum and Carol Drummond had not been
friendly for a “very long time.” She said she would never believe her
daughter, Karla Corum: “She’s had a problem with the truth all her
life.”

The case was turned over to the jury
about 2 p.m., July 2. Judge Dandurand instructed the jury on
second-degree murder, with a range of punishment of 10 years to 30
years, or life imprisonment, or the lesser charge of voluntary
manslaughter.

THE VERDICT

A criminal trial is a deeply emotional
event for the people involved. Lawyers waiting for a jury verdict
relive the trial, agonizing over everything they might have done
differently. The friends and family of the victim are on one side of
the room; the friends and family of the defendant on the other.
Animosity between the two groups is usually palpable. This case was no
different. On one occasion I was leaving the courtroom about 10 feet
behind John Dawson, Brian Gepford’s investigator. As I went through the
door to the hallway, someone in Phil Gill’s group spoke to Dawson, and
he responded. Then as Dawson continued down the hall I heard someone
else in the group say, “Don’t be talking to him, he’s on their side.”

Jackie Hancock, now 13, was there with
Carol Drummond. It was apparent from her demeanor around Gardner that
she has affection for him. According to Drummond, Jackie hated her
father.

An hour after the jury began
deliberating, Judge Dandurand called everyone back to the courtroom. It
had been pointed out to him that the instruction for voluntary
manslaughter failed to specify what the difference was between
second-degree murder and voluntary manslaughter. So he gave them a new
instruction which included language on the heat of passion. Then he
sent them back to the jury room.

Phil Gill and his buddies waited on the
east side of the courthouse, with Gardner and his entourage on the west
side. The July heat was nudging 100 degrees. Drummond was wearing the
same brown knee-length boots she’d worn each day of the trial, causing
me to wonder if she had options.

Jeff Gardner seemed confident he would be
acquitted, even though he’d been cautioned more than once that a jury
trial is always a crap-shoot. In this age of “law and order,” with more
than a million people in American prisons, and with that number
spiraling crazily upward annually, many experienced criminal lawyers
despair of getting a fair shake from a jury.

Gardner seemed oblivious to these
possibilities. He’s a good looking guy, intelligent, perhaps even
charismatic. His biggest worry seemed to be that he was losing time
from work. Try as I might, I couldn’t picture him as a cold blooded
killer. No, he was the kind of guy who’d panic, and miss you two out of
five times at point blank range.

Watching Gardner as he sat on the
courthouse porch, puffing cigarettes and brushing the stray bead of
sweat, I got every impression that he believed, unquestioningly, that
he would be acquitted.

When word came that there was a verdict, Gardner seemed almost eager to go up to the courtroom.

Phil Gill and his group filed into one
side of the courtroom, Carol Drummond and the friends and family of
Jeffrey Wayne Gardner on the other. Police officers and deputy sheriffs
were thick, in case trouble should break out when the verdict was
announced.

The jury foreman gave the verdict to the
clerk, who gave it to Dandurand. As he read the verdict Dandurand had a
slightly troubled look on his face. Then he read it aloud.

Guilty of second-degree murder, with a sentence of 20 years imprisonment.

I heard startled sobs behind me – pleased
gasps across the aisle. The jury filed out of the courtroom, then a
deputy sheriff tapped Gardner on the shoulder, to take him into
custody. Gardner seemed to leap from his chair and obediently followed
the deputy to a bench in the corner of the courtroom.

A huge grin split Phil Gill’s face. He
slapped palms with police and prosecutors. As he was leaving the
courtroom Gill was heard to say, “she’s next.”

Jeffrey Gardner will be sentenced on Aug. 25, but I think his case is far from over. It may well be overturned on appeal.

I discussed the case with Timothy
O’Leary, who retired as a highly respected Jackson County circuit judge
a few years ago, and is now with the law firm of Shughart Thomson
& Kilroy. O’Leary seemed disturbed that the judge gave a new
manslaughter instruction, adding language on “heat of passion,” without
allowing Brian Gepford to argue to the jury just what that meant.

Gepford talked to one juror after the
verdict, and she told him that she hadn’t the foggiest idea what “heat
of passion” meant. She thought it had something to do with sex
(passion). She voted guilty, she said, because she felt Gardner had
fired the gun too many times. Even though he missed two out of five
times at point blank range.